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Ngudjolo Detained by the Netherlands as he Seeks Asylum

Mathieu Ngudjolo Chui, recently acquitted by the International Criminal Court (ICC), has been taken into custody by Dutch officials, allegedly on an immigration infraction. He has claimed asylum in the Netherlands and is currently being held in a detention center at Schiphol Airport, near Amsterdam. Ngudjolo has requested assistance from the ICC in securing his release and ensuring his protection.

On December 18, 2012, Trial Chamber II of the ICC acquitted Ngudjolo of all charges relating to crimes against humanity and war crimes committed during an attack on Bogoro, a village in the eastern region of the Democratic Republic of the Congo (DRC). The Court ordered his immediate release. The prosecution appealed this order, requesting the Court to keep Ngudjolo in custody while they appeal the acquittal. The Appeals Chamber rejected this request and Ngudjolo was released from the ICC Detention Center on December 21, 2012.

Upon his release, Ngudjolo was handed over to the Dutch police to be transported to Schiphol Airport. He had requested protective measures from the ICC and requested transfer to Belgium, where he said he would seek asylum. He claimed that his life would be in danger if he returned to the DRC because of his testimony that the DRC government was responsible for the attack on Bogoro.

According to Ngudjolo, the Dutch unexpectedly decided to repatriate him to the DRC. In order to stop this transfer, Ngudjolo submitted an application for asylum in the Netherlands. Ngudjolo has since remained in custody at the refugee detention center at the airport. He claims he has been deprived of his liberty on the grounds that, once released from the ICC detention center, he had no residence permit entitling him to remain in the Netherlands. According to Ngudjolo, his detention is unjustified.

Ngudjolo also argued that his detention shows that the Victims and Witnesses Unit (VWU) has failed its obligation to protect him. Upon his acquittal, the trial chamber ordered the VWU to take all necessary measures to protect Ngudjolo, as required by the Rome Statute. Since Ngudjolo testified in his own case, he is considered an ICC witness. Article 68 of the Rome Statute requires the Court to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” Ngudjolo argued that this means the VWU is bound to take steps to guarantee his liberty, safety, and relocation, just as it does for other witnesses.

Ngudjolo submitted that the ICC should require the Netherlands to hand him over to ICC authorities, with whom he would agree on a place to live pending his asylum and appeal proceedings. He also requested the Court to instruct the VWU to provide for his protection, as required by the Rome Statute.

Detained by Dutch Authorities

The Dutch have detained Ngudjolo because he does not possess a valid visa and passport, Ngudjolo submitted. However, he argued, he did not arrive in the Netherlands voluntarily but rather after being arrested in the DRC and transferred to the ICC for trial. Therefore, he did not enter the country unlawfully, he submitted, and was only in the country for the purposes of the trial. Ngudjolo argued that his acquittal does not automatically make him an illegal alien in the Netherlands because he did not materially or intentionally breach Dutch immigration law.

Consequently, Ngudjolo claims, the ICC must issue him a document to attest to the lawfulness of his presence in the Netherlands and his need for protection. Indeed, Ngudjolo argued, the Registry regularly seeks assistance from States to obtain the proper records, documents and support in order for witnesses to be transferred to the Netherlands to testify and, if necessary, be relocated for their safety. However, he says, he has not received any information about the ICC making these types of requests on his behalf.

Ngudjolo has also argued that, according to the agreement between the Netherlands and the ICC (the Headquarters Agreement), the Netherlands is obligated to facilitate the smooth and efficient functioning of the ICC, including when the Court needs people to be present in The Hague. Ngudjolo has requested the Court to order the Registry to provide the Dutch authorities with a document certifying that his presence is required in The Hague for his appeals proceedings.

Moreover, Dutch law and international law prohibit his return to the DRC, where he claims he would be tortured or possibly subject to the death penalty if he were tried by DRC courts. Ngudjolo argued that because he cannot be returned to the DRC, he should enjoy complete freedom of movement in the Netherlands for the purposes of his ICC and asylum proceedings.

On the basis of these arguments, Ngudjolo has asked the ICC to require the Netherlands turn him over to ICC authorities, with whom he will agree on a place to live until his ICC and asylum proceedings have concluded. He has also asked the Court to instruct the VWU to take measures to assure his safety and security.

Important Precedent for the ICC

The decision of the Appeals Chamber will set important precedents in many respects. These challenges are not unique to Ngudjolo’s case and will likely be faced by others who may be acquitted by the ICC in the future. However, these issues are novel, if perhaps expected, for Dutch officials. Before the International Criminal Tribunal for the former Yugoslavia, which is also based in the Netherlands, acquitted defendants often return home to a hero’s welcome. Therefore, they have not faced the same tensions with the Dutch authorities as Ngudjolo.

Many of these same problems have been faced by accused acquitted by the International Tribunal for Rwanda (ICTR). Defendants acquitted by the ICTR often fear return to Rwanda, both at the hands of the government, which reportedly has a poor human rights record, especially against those seen to be hostile to the state, and at the hands of Rwandan citizens undertaking vigilante justice. They also face significant challenges in finding states that will grant them asylum. Tanzania reportedly has a poor record with refugee rights. Refugees that are permitted to stay in Tanzania are housed in dangerous refugee camps and may suffer other human rights violations. In the interim, they are forced to reside in ICTR safe houses in Tanzania. (For more on this, see this article by legal scholar Kevin Jon Heller that describes the legal and practical challenges faced by those acquitted by the ICTR).

Legal Battle to Come

It is nearly certain that there will be a complicated legal battle over Ngudjolo’s ultimate residence. He might be refused asylum in the Netherlands if the Dutch immigration officials consider there are “serious reasons” to consider he has committed a war crime or crime against humanity. Although Ngudjolo has been acquitted by the ICC for such crimes, the ICC applied a much higher standard: beyond a reasonable doubt. Therefore, the ICC’s acquittal does not preclude a finding by Dutch immigration authorities that there are “serious reasons” to consider he has in fact committed such crimes. However, even if the Netherlands denies Ngudjolo asylum on these grounds, the Netherlands may be prohibited from returning him to the DRC if he risks torture or a flagrant denial of fair trial rights—all of which Ngudjolo claims he will suffer if returned.

The Appeals Chamber has not yet made a determination on Ngudjolo’s claims. Its decision will be significant. How his situation is resolved will likely set a precedent for future acquittals at the ICC, as well as shape the relationship between the ICC and the Netherlands. Indeed, Ngudjolo argued that the failure of the Dutch to adhere to the Court’s orders for his release and protection risk undermining the prestige and authority of the ICC. The impending decision will also influence how the Court treats defendants who are also witnesses in their own trials, and who should therefore be afforded the same protections as other witnesses appearing before the ICC.

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